The attorneys who are fighting to keep intelligent design out of public school science classes say it's doubtful Dover's case will make it to the U.S. Supreme Court. But school district attorney Richard Thompson is already preparing the case for the nation's highest court.

The school district hasn't yet begun to present its case in the U.S. Middle District trial, but Thompson said he's counting on the Supreme Court's new lineup to be beneficial to his case if it makes it there.

If the verdict in the current case is appealed, it would be sent to the U.S. Court of Appeals for the Third Circuit, which covers Pennsylvania, New Jersey, Delaware and the Virgin Islands.

If either side is unhappy with the Court of Appeals' determination, it could petition the Supreme Court to hear the case.

Witold Walczak, legal director for the state's branch of the American Civil Liberties Union, said he thinks "it's far from a sure bet that the Supreme Court would hear this case.

"I certainly don't think it's as definite as Dick Thompson seems to be saying."

Thompson has already said he plans to appeal to the nation's highest court if he loses. The ACLU and Americans United for Separation of Church and State have been less definite, but Walczak said it's "highly likely" that they, too, would push the issue to a higher court if they lose.

"You don't put as much time and resources in a case as we have put into this and stop halfway," he said.

But he is skeptical that the nation's highest court would take on the case.


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The Supreme Court generally doesn't hear a case until a number of courts have heard the issue and there are conflicting rulings in appeals court, he said.

Dover's is the first court case challenging intelligent design, and the court is also highly selective, he said.

According to the Supreme Court's Web site, more than 8,000 petitions are filed with the court each year, but only about 100 are taken on.

Richard Katskee, assistant legal director for Americans United for Separation of Church and State, said that if his side is victorious and it is ruled that intelligent design is creationism, the Supreme Court would not have any particular reason to take the case: The court has already ruled that
creationism can't be taught in science classes.

Katskee said the court would be more likely to take the case if the school district wins the Third Circuit appeal.

Almost 20 years: Regardless, Thompson said he thinks the Supreme Court could be interested in taking the case because it has been almost 20 years since Edwards v. Aguillard.

In the 1987 decision, the court ruled that teaching creation science was unconstitutional because it violated the First Amendment's establishment clause, which states the government can't make a law establishing religion.

The Edwards case was spurred by a Louisiana law that prohibited the teaching of evolution unless accompanied by creation science.

At the time, Chief Justice William Rehnquist and Justice Antonin Scalia dissented from the other seven justices, saying they didn't agree with the "purpose" or "motivation" part of the Lemon Test, a three-prong test used to determine if a government action is unconstitutional.

Under the Lemon Test, an action is considered unconstitutional if those who created it had religious motivations, or no secular purpose.

In Scalia's opinion in the Edwards trial, he took issue with the prong dealing with motivation, saying it is "almost always an impossible task" to determine a legislator's "subjective motivation."

Thompson said it would be "like opening a Pandora's Box."

Lemon Test: Dover's intelligent design statement is being weighed against the Lemon Test to see if it violates the establishment clause, and Thompson said the case "would be an appropriate vehicle for Scalia and others to revisit whether motives ... should be taken into consideration."

But while Scalia argued that there was no definitive testimony in the Edwards case that suggested religious motivations, several of the plaintiffs' witnesses in the Dover case have said they heard at least two school board members making religious comments, even referencing the crucifixion of Christ.

York's two newspapers also reported those comments while covering the meetings.

But during cross-examination in the Dover case, Thompson has been trying to establish that, as Scalia wrote of the Louisiana legislature in his opinion, one or two members don't make up the whole school board.

Scalia wrote in 1987 that, "If a senate approves a bill by vote of 26 to 25, and only one of the 26 intended solely to advance religion, is the law unconstitutional? What if 13 of the 26 had that intent?"

Thompson said he has already been gathering testimony in this case to establish that if one or two members had religious motivations, they don't represent the entire board.

"Board members can't tell a member of board ... not to speak," Thompson said.

Similarities to earlier case: There are several similarities between the Edwards case, in which the courts examined creation science, and the Dover case, in which the court is examining intelligent design.

In both cases, the defendants said they were seeking academic freedom, that the "creator" referred to is not necessarily the Christian God, that origins of life are not taught, that the teaching (of creation science in Edwards and intelligent design in Dover) is not mandated and that evolution should be "balanced" with an opposing theory.

Both the Louisiana legislators and members of Dover's school board have been shunned by most educators and scientists. Scalia said in 1987 that Edwards was like "Scopes in reverse," an analogy Thompson has used for Dover's dilemma.

The 1925 Scopes trial was held in Tennessee after science teacher John Scopes was accused of teaching evolution.

Thompson said the parallels he has been drawing to the Edwards case -- and Scalia's opinion -- aren't accidental.

He said he has headed in that direction "whenever relevant," in order to make a record "so an appellant court, when looking at it, will have a full flavor for what happened here."

"I think both sides are doing that (making their case relevant for the Supreme Court)."

Two left from Edwards: The Supreme Court consists of nine justices.

Scalia and Associate Justice John Paul Stevens, who voted against Scalia's opinion in the Edwards' case, are the only two justices remaining from the 1987 case.

Rehnquist, the only justice to go along with Scalia's opinion in the Edwards case, died of complications from thyroid cancer Sept. 3.

In the current court, Scalia and Associate Justice Clarence Thomas are generally considered conservative. Stevens and justices Stephen Breyer, David Souter and Ruth Bader Ginsburg are considered liberal.

Ginsburg is a former ACLU attorney.

Anthony Kennedy is considered a moderate.

Roberts a question mark: Though he has not been on the bench long enough to determine his leanings, new Chief Justice John Roberts has been largely classified as between Scalia and Kennedy.

Thompson said Roberts' record shows he is against judicial activism, or overturning legislation enacted by local and state governments, such as a school board.

Both the ACLU and AU have issued positions on Roberts, saying his record on First Amendment issues raises concerns about his commitment to upholding the separation of church and state.

"While serving as the politically appointed principal deputy solicitor general from 1989 to 1993, Roberts authorized briefs calling for Roe v. Wade to be overruled, supporting school prayer, and seeking to criminalize flag burning as a form of political protest," the ACLU's statement said.

Last week, President George W. Bush nominated Harriet Miers to fill the position left vacant by the retirement of associate justice Sandra Day O'Connor.

The moderate conservative O'Connor often cast the deciding vote in 5-4 decisions dealing with controversial issues.

She gave the court the majority it needed to affirm Roe v. Wade, which legalized abortions and, in 1992's Lee v. Weisman, she cast the deciding vote that prohibited government-sponsored prayer at graduations and other public school events.

Thompson praises changes: While Miers' opinions are largely unknown, Thompson said the changes could benefit Dover.

"I think there are more conservatives, the court is going to be moving in a more conservative direction," he said. "Conservatives are more likely to allow legislative policies to stand even though those policies may have religious implications."

"This court may spark the move away from the Lemon Test into a more concrete test that will address the idea of coercion ... (whether or not a government measure) is coercing students to accept religion or not."

Katskee said the Supreme Court has historically been "most protective" of the line between church and state as it pertains to children.

But in recent years, there have been alternative views offered from the "religious right," Katskee said.

"It's a minority position, but it is becoming a powerful position in the judiciary."

Regardless, it is the justices' job to distinguish whether something is constitutional, not whether it coincides with their own policy views, he said.

Katskee said the Dover case has national implications and he hopes, should the case arrive at its feet, that the Supreme Court will continue to protect the separation of church and state.

"Citizens, school board members and legislators across the country are watching this case," he said. "The result of the case will provide a strong signal to people across the country whether intelligent design creationism can be put into the science classroom or not."

Katskee said a victory for the parents would "put the brakes on the intelligent design movement," and a win for the school district would give "the green light" to the "newest mechanism for working religion into schools."

-- Reach Christina Kauffman at 505-5434 or ckauffman@yorkdispatch.com.